[29]      I should also advert briefly to an argument made by the plaintiffs at the oral hearing of this appeal – that the summary trial judge should not have proceeded at all under Rule 18A in the face of their lack of evidence as to what counsel referred to as “proof of damages”. … It was said that in the circumstances, the summary trial judge should have dismissed the defendants’ motion for judgment and permitted the plaintiffs to address this matter on a later occasion. In this regard, the plaintiffs cited the comments of this court in Placer Development Ltd. v. Skyline Explorations Ltd. (1985), 67

These options were:

1.               He may agree that the case is an appropriate case for a summary trial and he may decide to seek judgment on the merits in favour of his client.

2.               He may decide that it is a wholly inappropriate case for summary trial and he may decide to oppose the application for summary trial on the basis of material already filed and on the basis of additional material including affidavits that tend to show that the case is inappropriate for disposition under the rule.

3.               He may decide that the case is an inappropriate case for summary trial but he may decide to file affidavits and other material tending to show that while it is not an appropriate case for summary trial, if there is to be a summary trial the judgment should be in favour of his client [At 384-5.]

The Court went on to observe that the language of what was then R. 18A(3) – more latterly, R.

18A(11) and now R. 9-7(11) – clothes the judge with a “broad discretion” to refuse to proceed where the judge is unable to find the facts necessary to decide the issues of fact or law or if it would be unjust to decide the issues.

In Gichuru v Paiiai 2013 BCCA 60 it was held that there is no absolute rule that a plaintiff who ahs failed to lead sufficient evidence to prove his case, or a defendant who has failed to lead sufficient evidence to meet the case against it, will have judgement granted for or against them by virtue of that fact alone.

Gichuru   went on to say:

33.  Anglo Canadian Shipping has been cited and applied by this court on many occasions: see, e.g. Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at paras. 34; Gilmour Estate v. Parchomchuk, 2011 BCCA 207 at paras. 19; Dixon v. British Columbia Snowmobile Federation, 2003 BCCA 174 at para. 5; Strathloch Holdings Ltd. v. Christensen Bros. Foods Ltd. (1997), 29 B.C.L.R. (3d) 341 (C.A.) at para. 12.

34      In summary, the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations (see Creasy v. Sweny (1942), 57 B.C.R. 457 (B.C. C.A.), at 459; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (S.C.C.) at para. 104; Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203 (B.C. C.A.) at para. 94, leave to appeal ref’d [2009] S.C.C.A. No. 364 (S.C.C.); and Bell v. Levy, 2011 BCCA 417 (B.C. C.A.) at para. 75), or it appears that the decision is clearly wrong and may result in an injustice (see Taylor v. Vancouver General Hospital (1945), 62 B.C.R. 42 (B.C. C.A.), at 50, [1945] 3 W.W.R. 510 (B.C. C.A.)).

35      The authorities are also clear that a summary trial, although heard on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised. Mr. Justice Wood, writing for the Court in Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (B.C. C.A.), clarified this issue (at page 352):

There is no reason why the onus should be reversed simply because the defendant moves for judgment under Rule 18A, thus requiring the plaintiff to prove her case in a summary trial proceeding. …

… the onus of proof does not shift simply because a trial is conducted summarily under rule 18A [now R. 9-7]. As in an ordinary trial, the party asserting the affirmative of an issue must prove it on a balance of probabilities. I believe that such a result is also consistent with what was said by McEachern, C.J.B.C. in Inspiration Management et al. v. McDermid et al. [citation omitted] at page 215 of the report:

The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to the law unless he has the opinion that it will be unjust to give such judgment.

With respect to summary dismissal of a plaintiff’s claim the test in law is as stated in American Buildings v Surrey Iron Works (1980) 27 BCLR 145, BCCA :

13      Counsel for the appellant relied on the judgment of this court in Hughes v. Sharp (1969), 68 W.W.R. 706, 5 D.L.R. (3d) 760 (B.C.C.A.). In that case Tysoe J.A. used language, which I will paraphrase as follows [p. 709]:

[The] litigant must be allowed his day in court, and must not be deprived of a trial in the ordinary way unless it is manifestly clear that he is without a defence that deserves to be tried.

I change those latter words to “unless it is manifestly clear that his claim has no merit and does not deserve to be tried”.